The opinion of the court was delivered by: William C. Conner, District Judge.
Plaintiff brings this civil rights action alleging that her
constitutional rights were violated by the defendants when
they failed to provide the necessary procedures to terminate
her unwanted pregnancy. Defendants now move for summary
judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons
discussed below, defendants' motion is granted.
On July 31, 1985, plaintiff Grishelda Bryant was committed
to the custody of the Westchester County Department of
Correction. When plaintiff told a booking agent that she
believed she was pregnant, Westchester County Correctional
Facility scheduled a sonogram for plaintiff at the Westchester
County Medical Center on August 1, 1985. The sonogram
indicated that plaintiff was in her twenty-first week of
pregnancy. Plaintiff then informed a nurse at the Westchester
County Correction Facility that she wanted her pregnancy
terminated. She was told on August 2, 1985 by a nurse to put
her request in writing. By letters to defendants Thackeray and
Dr. Allan dated August 2, 1985, plaintiff requested an
According to his testimony and a notation on the letter, Dr.
Allan received plaintiff's letter on August 8, 1985 and,
through his office, arranged for an appointment to be
scheduled at the Kings County Hospital Center, where abortions
were performed on pregnant female inmates housed at the
Westchester County Correctional Facility who were more than
twelve weeks pregnant. The appointment was scheduled for
August 19, 1985, allegedly the earliest appointment available.
According to the Westchester County Medical Center composite
sonogram results, which found plaintiff to be in her
twenty-first week on August 1, 1985, the August 19, 1985
appointment was within the twenty-four week legally
permissible time period, which would have expired on August
22, 1985. Unaware of the status of her request, plaintiff
inquired and was informed by defendants Thackeray and Powell
that an appointment was scheduled for her to receive an
abortion. By memorandum dated August 12, 1985, Dr. Allan
advised defendant Jackson that the plaintiff was in her
twenty-second week of pregnancy, that an abortion had been
scheduled at Kings County Hospital Center for August 19, 1985
and that transportation had been arranged. A copy of this memo
was sent to defendant Thackeray.
On August 19, 1985, plaintiff was transported to Kings
County Hospital Center by the Westchester County Department of
Correction. A second sonogram was performed which, as
interpreted by Kings County Hospital personnel, indicated that
plaintiff was twenty-four weeks pregnant, a gestation period
beyond the legal limit. Consequently, the abortion was not
performed and plaintiff was returned to the Westchester County
Correctional Facility. On November 29, 1985, plaintiff was
to the custody of the New York City Department of Correction.
On December 4, 1985, plaintiff gave birth to a daughter while
in the custody of the New York City Department of Correction.
At all relevant times cited in the complaint, John J.
Maffucci was Commissioner of the Westchester County Department
of Correction, Norwood Jackson was Warden of the Westchester
County Correctional Facility, Dawn Thackeray and Yvonne Powell
were Assistant Wardens respectively in charge of and assigned
to the Women's Unit, and Dr. Edward Allan was Director of
Correctional Health Services under the auspices of the
Westchester County Medical Center. Medical services are
provided to all inmates housed at the Westchester County
Correctional Facility by the Westchester County Correctional
I. Standard for Summary Judgment
Under Fed.R.Civ.P. 56(c), a court may enter summary judgment
only if it finds that there is no genuine issue as to any
material fact and that, based on the undisputed facts, the
moving party is entitled to a judgment as a matter of law.
See e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Horn &
Hardart Co. v. Pillsbury Co., 888 F.2d 8, 10 (2d Cir. 1989);
Montana v. First Federal Savings & Loan Ass'n, 869 F.2d 100,
103 (2d Cir. 1989); Knight v. U.S. Fire Ins. Co., 804 F.2d 9,
11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570,
94 L.Ed.2d 762 (1987). The movant bears the initial burden of
informing the court of the basis for its motion and identifying
those portions of the record which demonstrate the absence of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
The burden then shifts to the party opposing the motion "to
produce sufficient evidence to support a claim that a genuine
factual issue exists." Gutwein v. Roche Laboratories,
739 F.2d 93, 95 (2d Cir. 1984).
In determining whether a genuine issue exists, the court
must resolve all ambiguities and draw all reasonable
inferences in favor of the party opposing the motion. See Horn
& Hardart, 888 F.2d at 10; Montana, 869 F.2d at 103; Donahue v.
Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.
1987). However, the opponent may not rest on rote allegations,
but must set forth specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e). Thus, the mere
existence of some "metaphysical doubt" concerning the facts
will not defeat summary judgment, Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348,
1355-56, 89 L.Ed.2d 538 (1986), nor will speculation or
conjecture as to the true nature of the facts. See Quarles v.
General Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985).
The applicable substantive law will identify which facts are
material. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. If
the dispute about a material fact is genuine — that is, if the
evidence is such that a reasonable jury could return a verdict
for the non-moving party — summary judgment is inappropriate.
Id. However, if the evidence, even when viewed in the
non-movant's favor, is legally insufficient to support a
verdict for that party, summary judgment may be granted. See
id. at 249, 252, 106 S.Ct. at 2510, 2512; Shearson Lehman CMO,
Inc. v. TCF Banking & Savings, 710 F. Supp. 67, 69 (S.D.N Y
II. Plaintiff's Civil Rights Claims
A. Standard for Constitutional Violation
The standard for determining whether there has been an
unconstitutional denial*fn2 of medical care is whether there
has been deliberate indifference to a prisoner's serious
medical need, illness or injury.*fn3 See Estelle v. Gamble,
429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Todaro v.
Ward, 565 F.2d 48, 52 (2d Cir. 1977); Bishop v. Stoneman,
508 F.2d 1224, 1225 (2d Cir. 1974). In Estelle, the Supreme Court
held that in order to state a cognizable claim under the Eighth
Amendment, a prisoner must allege acts or omissions
sufficiently harmful to show deliberate indifference because
only such indifference offends the "evolving standards of
decency" in violation of the Eighth ...